Crum v. Sawyer

Mr. Justice Bailey delivered the opinion of the Court: The decision of this case must necessarily depend upon the legal effect to be given to the contract between the complainant and his wife recited at length in the foregoing statement. It does not seem to be claimed by counsel that, at the time said instrument was executed, these parties had not the legal capacity to enter into valid and binding contracts with each other. Indeed, the terms of our present statute are such as to leave little room for such contention. Whatever may have been the common law disability of married women to contract, or of husband and wife to contract with each other, such disabilities would seem to be removed by the act of 1874 in relation to husband and wife. That act provides that, with certain exceptions and subject to certain limitations particularly pointed out, “Contracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried.” In Snell v. Snell, 123 Ill. 403, in commenting upon this and certain former statutes, we said: “By these acts married women are to-day placed upon the same footing with married men in respect to all property rights, including the means to acquire, protect and dispose of the same. They may own, huy, sell, transfer and convey any and all kinds of property, to the same extent as married men or single women may, and subject to no other ■or different conditions or restrictions.” In Hamilton v. Hamilton, 89 Ill. 349, we were called upon to give construction to this statute, as applied to contracts ■entered into directly between husband and wife, and after reierring, among other provisions, to the one above quoted, we aaid: “There is nothing in all this which forbids her to contract with her husband, and the words are general and broad ■enough to sanction such contracts. Not only so, hut it is provided in section 9 of the act, that where husband and wife rshall be living together, no transfer of goods between them shall be valid as against the rights of third persons, unless in "writing, duly acknowledged and recorded. This provision necessarily implies that the former hroad language of the statute was used in a sense to authorize contracts between husband and wife, and make them effective in all cases for lawful purposes, except in so far as otherwise provided by the act itself. "We find nothing in the act limiting her capacity to contract in this regard.” So, in Thomas v. Mueller, 106 Ill. 36, we held that, under existing legislation, all restrictions upon the power of husband and wife to contract with each other, except so far as they are expressly retained, are removed. Assuming then the general capacity of the complainant and wife to contract with each other, the questions presented by the record involve, first, an inquiry as to the proper construction of said contract so as to give effect to the intention of the parties as therein expressed, and, second, whether any of the provisions of the contract, either by reason of their subject ■matter or the mode of execution, must be held to be inoperative. Said contract was based upon a valuable consideration, and •there can be no doubt we think that said consideration was adequate. On the part of Mrs. Crum it consisted of the advancement and payment in money out of her separate estate in satisfaction of her husband’s indebtedness, of the sum of $31,992.80, and the relinquishment of her dower and homestead in her husband’s lands, and of her distributive share of his personal estate, and her covenant not to claim, demand or sue for any of the rights thus relinquished in case she should survive her husband. Said consideration, so far as it involved, the advancement and payment of said sum of money, was fully-executed. For this consideration the complainant released and relinquished all the interests which he would be entitled to claim in the real and personal estate of his wife in case he should survive her, and covenanted not to sue for, claim or demand any of said rights. With the exception of an inchoate, right of dower, the subject matter of his release was not a. vested right or interest, but a mere expectancy or possibility, which can scarcely be said to have had at the time any fixed pecuniary value. Mrs. Crum, it is true, has no children or descendants, and had reached that period of life when it was not probable that she w.ould have. Under these circumstances-her husband was the heir presumptive if not the heir apparent to one-half of her real estate and all her personal estate remaining after the payment of claims. But whether this mere-possibility would ■ ever become a vested interest was wholly uncertain. She had the undoubted power, during her lifetime, to dispose of her personal estate as she pleased, and she could also, subject to his dower, and homestead rights, if such should! be acquired, dispose of her real estate. Furthermore, it was-altogether uncertain whether he would survive her, and if he had died first, none of the interests which he undertook to relinquish would have become vested, or have ever possessed any value. It is true that one-half of the real estate of which she-in fact died seized and her personal estate not required for the-payment of claims were worth, at the time of her death, much more than the sum of money advanced by her. But this by no means proves that, at the time the contract was executed, the money advanced by Mrs. Crum and the covenants on her part, were not a sufficient and adequate present consideration for the relinquishment of mere possibilities which might never ripen into vested interests. But the rule is well settled that mere inadequacy of consideration, unaccompanied by other inequitable incidents, unless so gross as to show fraud, is never a sufficient ground for cancelling either an executed or executory contract, or to defeat, the specific performance of an executory contract. 2 Pomeroy’s Eq. Juris, see. 926. Furthermore, the*sufficiency of the consideration of the contract in this ease is not attacked by any pleading. The bill makes no mention of it, and of course does not attempt to state a case which would entitle the complainant to relief against it. It must then be held that, so far as the validity of said instrument is affected by the question of consideration, it must be held to be valid and binding upon the complainant. Mrs. Crum’s will and the codicil thereto having both been executed prior to her marriage with the complainant, were, by force of such marriage, revoked and annulled. R. S. 1874, chap. 39, sec. 10; Duryea v. Duryea, 85 Ill. 41. That this is-so is not questioned by counsel for the complainant. But they seek to argue from some expressions in the contract, from the fact that the contract and will were found together in the-private depository where Mrs. Crum kept her most valuable-papers, and from some other circumstances appearing in evidence, that Mrs. Crum was ignorant of the fact that her will had been revoked by her marriage, and that the will and contract were intended by her as parts of a scheme by which she-undertook to devote the bulk of her property after her death to the foundation and maintenance of a charity which should bear and perpetuate her name. The conclusion sought to be drawn from these assumptions, if we understand it correctly, is, that as said scheme has wholly failed by reason of the revocation of the will, the contract which counsel suppose was-entered into and designed merely as a part of and in furtheranee of said scheme, should he held to have totally failed of its purpose, and for that reason should not be enforced. To this theory there .seem to us to be grave and indeed unanswerable objections. First and foremost stands the legal presumption that Mrs. Crum, at the time she entered into said contract, knew the rules of law, and therefore knew that her will had been revoked by her marriage and was no longer in force. But apart from such legal presumption, there is no evidence which is at all clear or convincing, that she was not actually aware of the invalidity of her will. One of the circumstances to which we are referred as tending to show that she probably acted upon the impression that her will was still in force is, that in her contract she mentioned her devisees and legatees.. But so far as we can see, that circumstance is quite as consistent with-the supposition that she then intended and expected to make another will as that she was relying upon the belief that her former will remained unrevoked. Another circumstance tq which we are referred is the finding, after her death, of the will and contract together in her private box in the bank vault, where she would be likely to keep her most valuable papers. But the evidence fails to show when she deposited them there, and the will therefore may have been placed there before her marriage. If so, there is nothing remarkable in her failure to subsequently remove or destroy it. The fact that the two papers were found together in the box, in the absence of any circumstance giving it special significance, may be accounted for on a variety of hypotheses other than that of supposing that she regarded the will as still valid when she executed the contract. Perhaps the most suggestive circumstance shown in support of the theory of the complainant’s counsel is the execution by Mrs. Crum, two days before her marriage, and probably in contemplation of that event, of a codicil to her will, in which she made, among other bequests, one in favor of a son of her intended husband. ■ It is very likely that when she executed the codicil, she was not aware that her marriage which was so soon to take place, would revoke both that and the will, but her ignorance at that time of the legal effect of her marriage can hardly support a presumption that she was equally ignorant ■of it at the time of the execution of the contract, which was more than seven years later. Some other facts appearing in evidence are referred to in this connection, but without considering them more in detail, it may be said that the circumstances shown do not, either separately or combined, amount to anything which can be accepted as proof that Mrs. Crum executed said contract upon the mistaken belief that her will remained unrevoked. But if it should be admitted that such was in fact her supposition, we are unable to see that the case would be in the least degree affected thereby. If she was acting under a mistake, it was purely a mistake of law, and against the consequences of such mistakes the law ordinarily affords no relief. She, if she had lived, could not have obtained a cancellation of the contract •on that ground, nor can the complainant who seeks to come in as her heir and legal representative. So far as we can see, ihe contract must be interpreted and enforced precisely as ihough, at the time she executed it, Mrs. Crum in fact knew ihat her will had been revoked, or as though no such will had •ever existed. But it is contended that said contract, by reason of its subject matter or the mode of its execution, is not enforceable against the complainant. On the 24th day of June, 1886, the ■date of the contract, the complainant had, under the statute, ■an inchoate right of dower in the real estate of which his wife was then seized, and he had also an expectancy, as her heir, ■of taking by descent, the fee in an undivided one-half of the lands of which she should die seized, and to be entitled by way ■of distribution to all of her personal estate which should remain after the payment of claims. His dower was then a vested though imperfect right, but his interest as heir was a mere naked possibility or expectancy, and was in no sense a. present or vested interest in her property. No estate of homestead in' her lands had then been acquired, as from the time-of their marriage up to the date of the contract, Mr. and Mrs.. Crum lived upon and occupied a farm belonging to Mr. Crum, as their homestead, and did not establish a homestead upon, the property of Mrs. Crum until the September following. Whether the mere naked possibility or expectancy of an heir apparent or presumptive can be made the' subject of assignment or release, has been the subject of very grave controversy but the law now seems to be well settled that such assignment or release, if made bona fide and for an adequate consideration, will be enforced in equity, after the death of the ancestor, not. indeed as a trust attaching to the estate, but as a right of contract. 2 Story’s Eq. Juris. 1040 c. In Mitchel v. Winslow, 2 Story, 630,"Mr. Justice Story, discussing this question, says:. “Courts of equity do not, like courts of law, confine themselves-to giving effect to assignments of rights and interests which are absolutely fixed and in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies, and also of things which have-no present, actual or potential existence, but rest in possibility only. In respect" to the latter, it is true that the assignment, can have no positive operation to transfer, in presentí, property in' things not in esse; but it operates by way of present-contract, to take effect and attach to the things assigned, when and as soon as they come in esse; and it may be enforced as such contract in rem in equity.” To same effect see Woodworth v. Shorman, 3 Story, 171. In Wright v. Wiight, 1 Vesey, Sr. 409, Lord Hardiwick, discussing the grounds upon which an assignment by an heir of his expectancy may be sustained in equity, says: “An assignment always operates by way of agreement or contract, amounting, in consideration of this court, to this, that one agrees with another to transfer and make good that right or interest, which is made good by way of agreement.” So Mr. Spence, in his ■treatise on Equity Jurisprudence, says: “A naked possibility •or expectancy of an heir to his ancestor’s estate, or even the anticipated right of a-person or next of kin, may be subject to a contract in equity, which will be equivalent to an assignment •of the property, if and when it shall fall into possession.” 2 Spence’s Eq. Juris. 865. See also, Varick v. Edwards, 1 Hoff. Ch. 382; Mansell v. Lewis, 4 Hill, 635; Jackson v. Waldron, 13 Wend. 178; Hobson v. Trevor, 2 Peere Wms. 191. This court has repeatedly held that estates in expectancy, "though contingent, are proper subjects-of contract, and, therefore, that assignments by expectant heirs of their future •contingent estates, when made fairly and upon valuable considerations, though inoperative at law, will be enforced in •equity as executory agreements to convey. Parsons v. Ely, 45 Ill. 232; Bishop v. Davenport, 58 id. 105; Galbraith v. McLain, 84 id. 379; Kershaw v. Kershaw, 102 id. 307; Simpson v. Simpson, 114 id. 603. There can be no question then that the complainant’s eon-tingent interest or expectancy, as the heir of his wife, in her real and personal estate, was a proper subject of contract, and the contract in question having been made upon a valuable • consideration, by parties capable of. contracting with each ■ other, and, so far as the evidence shows, with entire fairness, it should, as to such contingent interest or expectancy, be • enforced according to its terms. A question, however, is made as to the right of the remaining heirs of Mrs. Crum to enforce said contract for then: sole benefit. Those portions of the contract by which the complainant remised, released and relinquished all his right and ■interest in the lands of his wife, and covenanted that, in the • event of his surviving her, he would not sue for or claim any ¡interest therein, run to his wife, “her heirs, executors, administrators, devisees and assigns,” and those portions of the conrtract containing similar provisions in relation to her personal estate, run to her, “her heirs, executors, administrators and. legatees.” There being no will, there are no executors, devisees or legatees, and no question is now raised in which the administrator,- as such, has an interest. The controversy is solely between the complainant, who is the surviving husband, and who, but for said contract, would have been one of the heirs of the intestate, and her next of kin who, if there had been no surviving husband, would have been her sole heirs. The point made seems to be, that whether the contract is to be regarded as having been made with the intestate herself for her own benefit, or with and for the benefit of her heirs, it must be deemed to inure as completely to the benefit of the complainant as of the other heirs at law. It is claimed that if the contract vested property rights in the intestate herself, those rights passed by descent to the complainant in the proportion in which he was entitled by law to inherit her estate, and that if it is to be enforced as a contract running to her heirs generally, he, as one of the heirs, is entitled to its benefits. To this view we are unable to yield our assent. Such interpretation of the contract would render it simply nugatory. A relinquishment by an heir to his ancestor of the. former’s expected inheritance is, in its nature, a relinquishment in favor of the other heirs, whether .they are mentioned in the instrument by which the relinquishment is made or not, and after the death of the ancestor, such relinquishment will be enforced in their favor. Thus, in Bishop v. Davenport, 58 Ill. 105, two of several children and heirs expectant executed to' their father instruments acknowledging the receipt from him of certain sums of money in full of their shares of his estate, and two others executed receipts for similar sums of money, in which they expressly released all claim to any share of his estate. In none of these instruments was any reference made to the other heirs, nor did they purport to be made for the benefit of the other heirs. It was held that said moneys were not received by way of advancement, but that said instruments would be enforced as releases by heirs of their expectancies, and on bill by the other heirs for partition, it was held that they were entitled to the entire estate, to the exclusion of those who had executed the releases. So in Kershaw v. Kershaw, 102 Ill. 307, a father conveyed to one of his sons a tract of land, and inserted in the deed a clause reciting that said conveyance was made to his son and accepted by him as his full and entire share of his father’s estate, and although the other heirs were not mentioned in the deed, it was held, in proceedings for partition of the estate after the death of their father, to operate in favor of the other heirs so as to vest in them the entire estate, to the exclusion of the one who by accepting the deed, released his expectancy in said estate. The true view would seem to be, that a release by an heir of his expectancy, operates, not as a transfer or conveyance to either the ancestor or the other heirs of the estate which would descend to him upon the death of the ancestor, but rather as an extinguishment of his right to take any estate by descent. It obliterates the right to inherit to an extent substantially equivalent to its obliteration by the death of an heir expectant without issue before the death of the ancestor. The other heirs are thereby placed in the same position in which they would have been if such right had never existed, and they therefore inherit the entire estate, not upon the theory of an assignment to them of the estate in expectancy of the heir executing the release, but upon the theory of an extinguishment or obliteration of that estate. But it is contended that the release in this case, when properly construed, extends only to the complainant’s dower and estate of homestead and his other rights which may properly be said to be ejusdem generis, and that it therefore does not affect the complainant’s estate which upon the death of his wife descended to him as her heir at law. This conclusion is sought to be reached by an application of the rule, that where, in a statute or contract, a specific enumeration of objects or •things is followed by a general expression, such expression will be held to include only such things or objects as are of the same kind as those particularly enumerated. The portion of the contract to which- this rule of interpretation is sought to be applied is as follows: “And the said party of the first part, in consideration of the payments made and to be made for his benefit, as above stated, and in further consideration of the covenants and agreements of the said party of the second part, hereinafter contained, does, by these presents, remise, release and relinquish 'to the said party of the second part, her heirs, executors, administrators, devisees and assigns, all his right and interest, of every kind and nature whatsoever, and especially his contingent right of dower and homestead, in all lands of which the party of the second part is now seized or of which she may hereafter become seized; and does hereby covenant to and with the said party of the second part, her heirs, executors, administrators, ■devisees and assigns, that in the event he should survive the said party of the second part, he will not sue for, claim or ■demand any right of dower or other interest whatsoever in or out of any and all real estate of which the said party of the second part may die seized or to which she may be entitled ■at the time of her death, either in possession, reversion, remainder or otherwise.” Here the general and comprehensive expression comes first. It is that the party of the first part does “release and relinquish * * * all right and interest of every kind and nature whatsoever, and especially his contingent right of dower and homestead,” etc., in the lands of his wife. The larger and more ■general intent is first stated, and the evidence, both intrinsic and extrinsic, tends to show that it was the intention of the parties to pass the larger rather than the more limited interest. An intent thus expressed will not be defeated or limited by ■subsequent expressions more restricted in their application. Binger v. Cann, 3 Mees. & Wels. 342. It is also insisted that the decree is erroneous in not awarding to the complainant his dower in the lands of his deceased wife, as claimed in his amended bill. The theory upon which "this claim is based seems to be, that the contract in question did not constitute a release of dower in the mode provided by statute, and that it must therefore be held to be inoperative, so far at least as that estate is concerned. Our statute has abolished the common law estate of tenancy by the curtesy, and has substituted in lieu of it a right of dower, so that now a husband may claim a right of dower in the lands of his deceased wife, such right being of the same nature and in all respects co-extensive with the dower which a widow may claim in the lands of her deceased husband. R. S. 1874, chap. 41, sec. 1. The 17th section of the statute in relation to conveyances prescribes the mode in which married women may release their dower, and it may be admitted that an attempted release by a married woman in any other mode would be ineffectual to bar her of her right. But the question in this case is not ■whether Mrs. Crum executed a valid release of her dower in her husband’s lands, but whether his release of dower in her lands was such as to bar his assertion of the right. While the statute giving to husbands the right of dower, vested in them a right which had formerly appertained to married Women only, and which had always been hedged about and trammeled by rules of law growing out of the legal disabilities of the dowress, we find in the statute no evidence that the General Assembly, in giving the right of dower to married men, intended, in connection with it, to impose upon them any of "those disabilities. The right of dower, when vested in a husband, is an estate in lands, inchoate during the lifetime of his wife and consummate afterwards, and so long as the statute has in no way restricted his power to convey it, we see no rea: ■son why he may not release the right or bar himself - of its assertion, in any mode to which the ordinary rules of law would give that effect. ■ . ' In this case the husband executed to his wife, upon a valuable and adequate consideration, an instrument under seal, by which he released his dower, and also covenanted with her and her legal representatives, not to assert said right in case he should survive her. If then it should be held that a release of dower by a husband directly to his wife is, by reason of their relation, ineffectual as a conveyance, there is no reason why his covenant with her and her representatives not to-claim or assert dower should not operate by way of estoppel to bar him of the right. The question whether said contract operated as a release of homestead presents greater difficulties. At the time the contract was executed no estate of homestead in his wife’s lands, had been acquired by the complainant, as at that time they were, and ever since their marriage had been, living on lands belonging to him. Subsequently they took up their residence upon lands belonging to Mrs. Crum, and acquired a homestead there, and they continued to occupy such homstead down to the time of Mrs. Crum’s death. The fourth section of the statute in relation to homesteads provides that no waiver or conveyance of the estate exempted shall be valid, unless the same is in writing, subscribed by the householder, and his or her wife or husband, if he or she have one, and acknowledged.in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to a conveyance. It is clear that the contract in question can not be construed as a waiver or conveyance of the homestead in the statutory mode. In McMahill v. McMahill, 105 Ill. 596, we held that the estate of homestead could not be barred by an ante-nuptial contract to that effect; that while such contract might bar dower, it could not bar the right of homestead. The same rule would seem to apply to a post-nuptial contract in relation to the homestead, entered into, as in this case, before the right of homestead accrued. We find no error in the decree so far as it relates to the lands not affected by the complainant’s estate of homestead. But we are of the opinion that he is entitled to his homestead, the contract in question not having the effect of releasing or extinguishing that right. His homestead, however, embraces only lots two, ten, eleven and twelve, in block three, in Burton & Kedzie’s addition to Jacksonville, and has nothing whatever to do with the residue of the lands in controversy. The decree therefore will be reversed as to the lots above mentioned, and as to the residue of the lands described in the bill, it will be affirmed, and the cause will be remanded to the Circuit Court for further proceedings, the costs of this appeal to be paid by the appellees. Decree reversed in part and in part affirmed.